Posted on 02/11/2006 2:01:29 PM PST by Tom D.
Major BUMP!
WOW! Amazing stuff BUMP!!
Pre-empting Snarlin' Sphincter has a nice ring to it.
BTTT
Let'im at it. He lost his wife on 9/11 -- do you think he couldn't deal handily with those in our own country who would let her murderers run amuck?
The government makes two main arguments. The first, it must be noted, was not presented to the FISA court; indeed, insofar as we can determine it has never previously been advanced either before a court or Congress. That argument is that the supposed pre-Patriot Act limitation in FISA that restricts the governments intention to use foreign intelligence information in criminal prosecutions is an illusion; it finds no support in either the language of FISA or its legislative history. ...Alternatively, the government contends that even if the primary purpose test was a legitimate construction of FISA prior to the passage of the Patriot Act, that Acts amendments to FISA eliminate that concept. And as a corollary, the government insists the FISA court's construction of the minimization procedures is far off the mark both because it is a misconstruction of those provisions per se, as well as an end run around the specific amendments in the Patriot Act designed to deal with the real issue underlying this case. The government, moreover, contends that the FISA courts restrictions, which the court described as minimization procedures, are so intrusive into the operation of the Department of Justice as to exceed the constitutional authority of Article III judges. ...
it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power if he or she is a U.S. person is grounded on criminal conduct.
It does not seem that FISA, at least as originally enacted, even contemplated that the FISA court would inquire into the governments purpose in seeking foreign intelligence information. ...
Nor does the legislative history cast doubt on the obvious reading of the statutory language that foreign intelligence information includes evidence of foreign intelligence crimes. To the contrary, the House Report explained:
[T]he term foreign intelligence information, especially as defined in subparagraphs (e)(1)(B) and (e)(1)(C), can include evidence of certain crimes relating to sabotage, international terrorism, or clandestine intelligence activities. With respect to information concerning U.S. persons, foreign intelligence information includes information necessary to protect against clandestine intelligence activities of foreign powers or their agents. Information about a spys espionage activities obviously is within this definition, and it is most likely at the same time evidence of criminal activities.H.R. REP. NO. 95-1283 (hereinafter H. REP.) at 49 (1978) (emphasis added).
The government argues persuasively that arresting and prosecuting terrorist agents of, or spies for, a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity. The government might wish to surveil the agent for some period of time to discover other participants in a conspiracy or to uncover a foreign powers plans, but typically at some point the government would wish to apprehend the agent and it might be that only a prosecution would provide sufficient incentives for the agent to cooperate with the government. Indeed, the threat of prosecution might be sufficient to turn the agent. It would seem that the Congress actually anticipated the governments argument and explicitly approved it. The House Report said:
How this information may be used to protect against clandestine intelligence activities is not prescribed by the definition of foreign intelligence information, although, of course, how it is used may be affected by minimization procedures . . . . And no information acquired pursuant to this bill could be used for other than lawful purposes . . . . Obviously, use of foreign intelligence information as evidence in a criminal trial is one way the Government can lawfully protect against clandestine intelligence activities, sabotage, and international terrorism. The bill, therefore, explicitly recognizes that information which is evidence of crimes involving [these activities] can be sought, retained, and used pursuant to this bill.Id. (emphasis added). The Senate Report is on all fours:
U.S. persons may be authorized targets, and the surveillance is part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnaping, and terrorist acts committed by or on behalf of foreign powers. Intelligence and criminal law enforcement tend to merge in this area. . . . [S]urveillances conducted under [FISA] need not stop once conclusive evidence of a crime is obtained, but instead may be extended longer where protective measures other than arrest and prosecution are more appropriate.S. REP. NO. 95-701 (hereinafter S. REP.) at 10-11 (1978) (emphasis added).
Congress was concerned about the governments use of FISA surveillance to obtain information not truly intertwined with the governments efforts to protect against threats from foreign powers. Accordingly, the certification of purpose under section 1804(a)(7)(B) served to
prevent the practice of targeting, for example, a foreign power for electronic surveillance when the true purpose of the surveillance is to gather information about an individual for other than foreign intelligence purposes. It is also designed to make explicit that the sole purpose of such surveillance is to secure foreign intelligence information, as defined, and not to obtain some other type of information.H. REP. at 76; see also S. REP. at 51. But Congress did not impose any restrictions on the governments use of the foreign intelligence information to prosecute agents of foreign powers for foreign intelligence crimes. Admittedly, the House, at least in one statement, noted that FISA surveillances are not primarily for the purpose of gathering evidence of a crime. They are to obtain foreign intelligence information, which when it concerns United States persons must be necessary to important national concerns. H. REP. at 36. That, however, was an observation, not a proscription. And the House as well as the Senate made clear that prosecution is one way to combat foreign intelligence crimes. See id.; S. REP. at 10- 11. ...
In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the governments use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.
In Re: Sealed Case No. 02-001, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002)
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html <- HTML
http://www.epic.org/privacy/terrorism/fisa/FISCR_opinion.pdf <- PDF
http://news.findlaw.com/cnn/docs/terrorism/fisa111802opn.pdf <- Alt. PDF
Case below (reversed by "In Re: Sealed Case") ...
http://news.findlaw.com/cnn/docs/terrorism/fisa51702opn.pdf
He did, on several occasions.
HATCH: In fact, there's a 2002 case, In Re. Sealed Case, right?GONZALES: In Re. Sealed Case, as I said in my statement...
HATCH: I mean, that's a case decided by the FISA Court of Review, the actual FISA Court, right?
GONZALES: The FISA Court of Review was created by Congress to review the decisions by the FISA Court.
In that decision, in that case, the FISA Court of Review acknowledged that these cases by other circuit courts, that the president does have the inherent authority. And the FISA Court of Review said, assuming that to be true, that FISA could not encroach upon the powers of the president.
Janet Reno was the convenient Attorney General that Clinton needed - - a figurehead. I don't think she had much of a clue about what was going on around her. The people who actually ran the DoJ were Web Hubbell (until he went to jail) and Jamie Gorelick.
mark
Just read your long post on FISA...
Two words:
You...
ROCK!!
Cheers!
It would be nice to be wrong on this one. :-(
I think he's been asked. I also believe that quite a number of candidates who are named as those we'd like to see have lost interest.
http://www.freerepublic.com/focus/f-news/1574256/posts
Nice to see Mr. York must be reading freerepulic to develope his articles!
:-) Go on and write to him and let him know that you appreciate his attention
York overemphasizes what the court of review actually said; the statements are dicta, assume that the premise is true, and do not carry the force of law.
"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."
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"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."
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"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
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"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."
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Some other case law - are you going to try and claim this all DICTA!
"If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." --The Amy Warwick (The "Prize Cases"), 67, U.S. 635, 668 (1862)
"The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs," possessing "vast powers in relation to the outside world." Ludecke v. Watkins, 335 U.S. 160, 173 (1948).
Foreign affairs power the “exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
Protecting the national security is also Presidential domain. Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982).
As Hamilton explained: "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency."
”The command and application of the public force . . . to maintain peace, and to resist foreign invasion" are executive powers. Application of Yamashita, 327 U.S. 1, 12 (1946). The authority to protect national security is not limited to actions necessary for "victories in the field." Id. The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.
The President “has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures. Kahanamoku, 327 U.S. at 336.
"[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization." Campbell v. Clinton, 203 F.3d 19 The Constitution gives the power to the President “to preserve order and insure the public safety . . . . when other branches of the government . . . functioning would itself threaten the public safety." Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).
The courts have affirmed it is President’s constitutional responsibility to respond to that threat with whatever means are necessary. See, e.g., Prize Cases, 67 U.S. at 635.
The Supreme Court has made clear that it will not construe legislative powers so as to prevent the President "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).
Awwwww, ain't that sweet?! You signed up just to tell us that, did you? SMOOCH!!
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